City of Conroe v. Tiffany Thomas, Individually and as Next Friend of C.C., a Minor, C.C., a Minor, and Edward Caldwell, Individually

In The

Court of Appeals
Ninth District of Texas at Beaumont
____________________

NO. 09-18-00215-CV
____________________

CITY OF CONROE, Appellant

V.

TIFFANY THOMAS, INDIVIDUALLY AND AS NEXT FRIEND OF C.C.,
A MINOR, C.C., A MINOR, AND EDWARD CALDWELL,
INDIVIDUALLY, Appellees
__________________________________________________________________

On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 17-06-08026-CV
__________________________________________________________________

MEMORANDUM OPINION

Appellant, the City of Conroe (“the City”), brings this interlocutory appeal

from the trial court’s order denying its plea to the jurisdiction. See Tex. Civ. Prac.

& Rem. Code Ann. § 51.014(a)(8) (West Supp. 2017). In three issues, the City

argues that the trial court erred in denying its plea to the jurisdiction based on

governmental immunity because the appellees failed to demonstrate that the City

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was grossly negligent as required by the Texas Recreational Use Statute. See id. §

75.002(f) (West 2017). We reverse the trial court’s order denying the City’s plea to

the jurisdiction and render judgment dismissing the appellees’ claims for lack of

subject matter jurisdiction.

Background

In June 2017, the appellees, Tiffany Thomas, individually and as next friend

of C.C., a minor, C.C., a minor,1 and Edward Caldwell, individually, sued the City

for negligence, claiming that a camp supervisor, who was working at a summer day

camp operated by the City and who was performing acts within the course and scope

of his employment for the City, was negligent and proximately caused C.C.’s eye

injury. In their petition, the appellees alleged that the camp supervisor was

supervising the children in sports activities inside a portable structure when the

supervisor had the children play baseball with a makeshift bat. According to the

appellees, the supervisor swung the makeshift bat and hit C.C., causing C.C. to lose

sight in his left eye. The appellees maintained that the City is vicariously liable for

the supervisor’s negligence.

1
This case involves two minor plaintiffs who are brothers and who have the
same initials, but only one of the minors was physically injured as a result of the
City’s alleged negligence. When referring to C.C. in the body of this opinion, we are
referencing the brother who was injured.
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 The City filed a plea to the jurisdiction asserting that the appellees’ claims fail

because (1) the recreational use statute requires plaintiffs to prove that the City

breached its duty of care by showing that the City acted with gross negligence, and

(2) the City’s immunity from suit is not waived because the supervisor was not

grossly negligent. According to the City, the undisputed evidence establishes that

the informal softball game associated with the City’s free summer day camp falls

within the recreational use statute, which provides that a governmental unit does not

owe a person who is engaging in recreation on premises occupied by the

governmental unit a greater degree of care than is owed to a trespasser. The City

argued that because its day camp qualifies as “recreation” under the recreational use

statute, it only owes a duty of care not to injure a person through gross negligence.

The City asserts that it is entitled to immunity because its employee who was

supervising the children was negligent, but not grossly negligent, and because the

City did not depart from the ordinary standard of care to such an extent that it created

an extreme degree of risk of harming the plaintiff.

The City further argued that the fact that the ball game was moved temporarily

to an indoor location due to the weather did not remove the activity from the

protection of the statute, because the statute’s definition of “premises” includes

buildings and structures located on the land. According to the City, the statute’s

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definition of “recreation” includes “camping[]” and “any other activity associated

with enjoying nature or the outdoors[,]” and the purpose of the City’s day camp is

to provide recreation and a “‘fun place where day campers can collaborate and grow

with an optimistic outlook on life by participating in camp activities and enjoying

the beauty of Conroe and its surrounding environment.’”

The appellees filed an amended petition adding a gross negligence claim

against the City. The appellees also filed a response to the City’s plea to the

jurisdiction, arguing that the case does not fall under the recreational use statute,

because under the statute, the City’s camp is not considered “camping” and playing

baseball inside a classroom is not “recreation” because it is not an activity associated

with enjoying nature or the outdoors. According to the appellees, there is a material

fact question regarding whether the indoor ball game at the junior high school is an

activity that qualified as “recreation” under the statute. The appellees argued that

because the indoor ball game does not fall under the type of activities that are defined

as “recreation,” C.C. was not a trespasser when he was injured at the City’s camp.

The appellees further argued that the trial court should deny the City’s plea to the

jurisdiction, declare that the activity that caused C.C.’s eye injury is not considered

“camping” under the statute, and allow the case to be tried on negligence and gross

negligence theories.

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 In the City’s reply to the appellees’ response to its plea to the jurisdiction, the

City argued that its day camp falls under the activity of “camping” because it is

related to enjoying nature and the outdoors, and the City further argued that informal

softball games are considered “recreation” under the statute. According to the City,

the trial court should grant its plea to the jurisdiction because the appellees’ gross

negligence claim is refuted by the evidence.

The record shows that the trial court denied the City’s plea to the jurisdiction

and found that the activity during which C.C. suffered his personal injury was not

“camping” or a “recreational use” for purposes of the statute. The City filed this

interlocutory appeal.

Standard of Review

Sovereign immunity protects the state from lawsuits for money damages and

deprives a trial court of subject matter jurisdiction unless the state consents to suit.

Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006).

Governmental immunity operates like sovereign immunity to afford similar

protections to subdivisions of the state, including cities. Id. A city may raise its

immunity from suit in a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). We review a trial court’s ruling on

a plea to the jurisdiction de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007).

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 When a plea to the jurisdiction challenges the existence of jurisdictional facts,

the trial court may consider relevant evidence and is required to do so when

necessary to resolve the jurisdictional issues raised. Miranda, 133 S.W.3d at 227.

When evidence is submitted that implicates the merits of the case, the trial court

reviews the relevant evidence to determine whether a fact issue exists. Id. This

standard of review generally mirrors the summary judgment standard under Texas

Rule of Civil Procedure 166a(c), as it places the burden on the governmental unit to

demonstrate that the trial court lacks subject matter jurisdiction. Id. at 228; see also

Tex. R. Civ. P. 166a(c). If the governmental unit meets its initial burden, the burden

then shifts to the plaintiff to show that a disputed material fact exists regarding the

jurisdictional issue. Miranda, 133 S.W.3d at 228. We take as true all evidence that

is favorable to the plaintiff and indulge every reasonable inference and resolve any

doubts in the plaintiff’s favor. Id. If the evidence creates a fact question regarding

the jurisdictional issue, the trial court cannot grant the plea because fact questions

must be resolved by the finder of fact, but if the relevant undisputed evidence negates

jurisdiction, the trial must grant the plea. Id. at 227-28.

Applicable Law

The Legislature has provided a limited waiver of the state’s immunity from

suit as to certain tort claims under the Texas Tort Claims Act (“TTCA”). State v.

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Shumake, 199 S.W.3d 279, 283 (Tex. 2006); see Tex. Civ. Prac. & Rem. Code Ann.

§§ 101.001-.109 (West 2011 & Supp. 2017). Specifically, section 101.021 of the

TTCA waives governmental immunity when a plaintiff’s injury is caused by (1) the

negligent operation of a motor-driven vehicle or motor-driven equipment; or (2) the

negligent use of tangible real or personal property. Tex. Civ. Prac. & Rem. Code

Ann. §§ 101.021, 101.025 (West 2011); Miranda, 133 S.W.3d at 225. To state a

cause of action under the TTCA for negligent use, the plaintiff must allege facts

showing that the employee’s negligence was the proximate cause of the injuries and

that the negligent conduct involved the use of tangible personal property. McBride

v. TDCJ-ID, 964 S.W.2d 18, 22 (Tex. App.—Tyler 1997, no pet.). Section 101.058

of the TTCA modifies a governmental unit’s waiver of immunity from suit by

limiting the liability of a governmental unit in cases in which the governmental unit

would be liable under the TTCA, and under such circumstances controlled by the

recreational use statute. Tex. Civ. Prac. & Rem. Code Ann. § 101.058 (West 2011);

see Miranda, 133 S.W.3d at 225.

“The recreational use statute recognizes that landowners or occupiers, who

open their property to the public for recreational purposes, provide a public benefit.”

Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 658 (Tex. 2007). To

encourage this use, the statute limits the liability of property owners who give

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permission to the public to enter the premises for recreation. Id.; Shumake, 199

S.W.3d at 284. The statute “absolves property owners of liability for injuries to

others using the property for recreation so long as the property owner does not

engage in grossly negligent conduct or act with malicious intent or in bad faith.” City

of Bellmead v. Torres, 89 S.W.3d 611, 612 (Tex. 2002). The recreational use statute

provides that if a person enters premises owned, operated, or maintained by a

governmental unit and engages in recreation on the premises, the governmental unit

does not owe the person a greater degree of care than is owed to a trespasser. Tex.

Civ. Prac. & Rem. Code Ann. § 75.002(f) (West 2017); see Flynn, 228 S.W.3d at

658, 660. Under the statute, a governmental unit only owes a duty to refrain from

injuring a trespasser willfully, wantonly, or through gross negligence. Tex. Civ.

Prac. & Rem. Code Ann. § 75.007(b) (West Supp. 2017). Thus, a governmental unit

waives sovereign immunity from suit for a plaintiff’s injuries under the TTCA and

the recreational use statute only if the governmental unit acted with gross negligence.

Miranda, 133 S.W.3d at 225.

The term “recreation” is defined as an activity such as:

(A) hunting;
(B) fishing;
(C) swimming;
(D) boating;
(E) camping;
(F) picnicking;
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 (G) hiking;
(H) pleasure driving, including off-road motorcycling and off-road
automobile driving and the use of all-terrain vehicles and
recreational off-highway vehicles;
(I) nature study, including bird-watching;
(J) cave exploration;
(K) waterskiing and other water sports;
(L) any other activity associated with enjoying nature or the
outdoors;
(M) bicycling and mountain biking;
(N) disc golf;
(O) on-leash and off-leash walking of dogs; or
(P) radio control flying and related activities.

Tex. Civ. Prac. & Rem. Code Ann. § 75.001(3) (West 2017). In determining whether

an activity is “recreation” for purposes of the statute, the relevant inquiry is what the

plaintiff was doing when he was injured. Torres, 89 S.W.3d at 614. The statute’s list

of recreational activities is not exhaustive, and the term “recreation” expressly

includes “any other activity associated with enjoying nature and the outdoors[.]”

Tex. Civ. Prac. & Rem. Code Ann. § 75.001(3)(L); Torres, 89 S.W.3d at 615. While

the statute does not apply to competitive sporting events or spectators, it does apply

to informal ball games associated with enjoying nature and the outdoors. See Univ.

of Tex. at Arlington v. Williams, 459 S.W.3d 48, 57 (Tex. 2015) (plurality op.)

(holding that the recreational use statute does not apply to competitive sporting

events or spectators); Univ. of Tex. Health Science Ctr. at Houston v. Garcia, 346

S.W.3d 220, 225-26 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (concluding

9
that playing sand volleyball on an outdoor court is a recreational activity within the

meaning of the statute).

The statute also includes indoor recreational activities that are conducted

inside buildings and structures located on the governmental unit’s property. See Tex.

Civ. Prac. & Rem. Code Ann. § 75.001(2) (West 2017); Torres, 89 S.W.3d at 615.

Under the recreational use statute, the definition of “premises” includes, among

other things, land and the buildings and structures attached to or located on the land.

Tex. Civ. Prac. & Rem. Code Ann. § 75.001(2). Thus, a plaintiff’s claim for injuries

that are sustained while engaging in indoor recreation on the governmental unit’s

premises falls within the purview of the statute. See City of Plano v. Homoky, 294

S.W.3d 809, 816-17 (Tex. App.—Dallas 2009, no pet.) (concluding that injuries to

plaintiff were sustained when she tripped and fell inside a clubhouse after playing

golf were related to the activity of playing golf).

ANALYSIS

In issue one, the City argues that the indoor softball game constitutes

“recreation” under the recreational use statute. The recreational use statute applies if

C.C. was engaged in “recreation” on the City’s premises at the time of his injury.

See Tex. Civ. Prac & Rem. Code Ann. § 75.002(f). It is undisputed that C.C. was

injured in a portable building or structure located on land owned by the City. Thus,

10
we conclude that C.C. was injured on the City’s “premises.” See id. § 75.001(2);

Torres, 89 S.W.3d at 613-14.

The record shows that when C.C. was injured, he was participating in a free

summer day camp operated by the City, and that the purpose of the camp was to

offer campers a safe and fun place to participate in camp activities and to enjoy the

beauty of Conroe and its surrounding environment. The evidence established that

C.C. was injured while playing a ball game inside a portable building, and the ball

game was conducted indoors because it was “wet and sloppy” on the field. The

evidence further established that the game was not an organized athletic event, but

merely a game played at day camp to entertain the campers and have them interact.

Based on this record, we hold that C.C. was playing a recreational ball game

during a summer day camp that was associated with enjoying nature and the

outdoors, and that he was not participating in a competitive sporting event. See Tex.

Civ. Prac. & Rem. Code Ann. § 75.001(3)(L); Williams, 459 S.W.3d at 57; Garcia,

346 S.W.3d at 225-26. The fact that the camp supervisor conducted the ball game

indoors due to weather conditions does not remove the recreational activity from the

purview of the statute. See Tex. Civ. Prac. & Rem. Code Ann. § 75.001(2); Torres,

89 S.W.3d at 615; Homoky, 294 S.W.3d at 816-17. Under these facts, we conclude

that when C.C. was injured he was engaged in “recreation” for purposes of the

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statute, and the recreational use statute therefore applies to the appellees’ claims. See

Tex. Civ. Prac. & Rem. Code Ann. § 75.001(3)(L). We sustain issue one.

In issue two, the City argues that the term “camping” in the recreational use

statute includes its day camp, which the City contends it provided for recreational

purposes for children to participate in camp activities and enjoy the beauty of Conroe

and its surrounding environment. Having already concluded that the recreational use

statute applies to the appellees’ claims, we need not address the City’s second issue,

as it would not result in greater relief. See Tex. R. App. P. 47.1.

In issue three, the City argues that it presented evidence refuting gross

negligence and that it is entitled to dismissal with prejudice. Because we have

concluded that the recreational use statute applies to the appellees’ claims, the City

owed C.C. the duty owed to a trespasser. See Tex. Civ. Prac. & Rem. Code Ann. §

75.002(f). A premises owner owes a trespasser the limited duty “not to injure that

person willfully, wantonly, or through gross negligence.” Miranda, 133 S.W.3d at

225. Gross negligence is an “act or omission involving subjective awareness of an

extreme degree of risk, indicating conscious indifference to the rights, safety, or

welfare of others.” Shumake, 199 S.W.3d at 287. “Gross negligence requires that the

landowner be subjectively aware of, and consciously indifferent to, an extreme risk

of harm.” Id. at 288. “[W]hat separates ordinary negligence from gross negligence

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is the defendant’s state of mind; in other words, the plaintiff must show that the

defendant knew about the peril, but his acts or omissions demonstrate that he did not

care.” Louisiana-Pacific Corp. v. Andrade, 19 S.W.3d 245, 246-47 (Tex. 1999). This

definition of gross negligence applies to the recreational use statute. See Miranda,

133 S.W.3d at 225.

In their amended petition, appellees claim that the City acted with conscious

disregard for the safety and welfare of its camp participants by conducting a

competitive ball game indoors and allowing the children to run around, swing

makeshift bats, throw and hit dodge balls, and play without helmets.

The appellees pleaded that the City was aware that the game was competitive with

an extreme degree of risk of serious injury, but nevertheless proceeded with

conscious indifference to the rights, safety, and welfare of C.C. The appellees did

not present any evidence showing that the City’s acts or omissions demonstrate that

the City was indifferent to the consequences to C.C. of a known extreme risk of

danger. See Miranda, 133 S.W.3d at 232.

The City contends that the evidence refutes gross negligence. The City

presented the affidavit of City supervisor Scott Perry, who averred that the purpose

of the City’s summer camp was to offer a safe and fun place where campers could

participate in camp activities. According to Perry, the counselor, who was

13
supervising the children when C.C. was injured, had organized an indoor softball

game because it was raining outside, and the game included a padded bat and dodge

balls. Perry averred that the game was not an organized athletic event, but merely a

day camp game played to be interactive and entertaining. Perry averred that prior to

the incident at issue, he was not aware of any safety complaints concerning the

counselor who supervised the indoor softball game, nor was Perry aware of any

injury ever occurring during this type of camp activity. Construing the appellees’

pleadings liberally, we hold that the appellees have not alleged any act or omission

by the City that satisfies the pleading requirements of gross negligence. See Homoky,

294 S.W.3d at 817. We conclude that the appellees have failed to raise a fact issue

regarding gross negligence. See Miranda, 133 S.W.3d at 232. We sustain issue three.

Conclusion

Having sustained the City’s first and third issues, we hold that the appellees

have failed to meet the requirements for a limited waiver of governmental immunity

under the TTCA and the recreational use statute. Accordingly, the trial court lacked

subject matter jurisdiction. We conclude that the trial court erred in denying the

City’s plea to the jurisdiction. We reverse the trial court’s order denying the City’s

plea and render judgment dismissing the appellees’ claims for lack of subject matter

jurisdiction.

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 REVERSED AND RENDERED.

______________________________
STEVE McKEITHEN
Chief Justice

Submitted on August 13, 2018
Opinion Delivered October 11, 2018

Before McKeithen, C.J., Kreger and Johnson, JJ.

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